Friday, August 29, 2003

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Mahathir weakened all checks and balances including the Judiciary

The 22 years of Dr Mahathir Mohamad�s reign as Prime Minister of Malaysia is coming to an end. It is apt for us now to review the impact that it has had on the Malaysian Judiciary and also the doctrine of separation of powers, which seeks to prevent an over-concentration of power in any the three bodies of government - the executive, the legislature and the judiciary.

1957-1987: A well respected judiciary

From 1957 until the mid-1980s, the Malaysian Judiciary built for itself a reputation of being independent and impartial and was held in high public esteem. There was, it seems, no accusation of judicial improprieties, corruption, bias and/or judicial misconduct during this period.

After Independence, one still had a right of appeal to the Privy Council if one was aggrieved by the decision of the Federal Court. But as time passed, fewer and fewer appeals were referred to the Privy Council and this can be taken only as an indication of the public satisfaction and appreciation of the competence of the Malaysian Judiciary. Finally, it was decided towards the end of the 1970s that this right of appeal to the Privy Council be discontinued. The Federal Court in the early 1980s became the final Court of Appeal in Malaysia, and was renamed the Supreme Court.

When Mahathir became Prime Minister - the first without a legal background to assume this position - he apparently had a rather high regard for the Malaysian Judiciary. At the opening ceremony of the Asean Law Association General Assembly on 26 October 1982, he had this to say about the Malaysian Judiciary:-

�I will always respect the Judiciary. We do not expect the courts to be pro or anti Government, only pro the Constitution and pro the law. The Government always considers the Constitution and the law carefully before we do anything so we expect the Judiciary to be free to judge our alleged trespasses without fear or favour, but in accordance with the law, in accordance with the law of evidence and procedure justly and fairly. We shall always respect their judgments...�

Late 1986 - The onslaught begins

But several years later, Mahathir�s feelings about the Judiciary changed. It was intensified with the decision of the Supreme Court in the case of Berthelsen -v- Director of Immigration, Malaysia & Ors. In brief, the DG of Immigration served a notice cancelling the two-year employment pass of a staff correspondent attached to the Kuala Lumpur office of the Asian Wall Street Journal. The Supreme Court came to a decision that since Berthelsen had not been given the opportunity to make a representation regarding the cancellation of his employment pass, the requirement of natural justice had not been satisfied. Accordingly, the court quashed the cancellation decision of the DG.

Subsequently in commenting on the role of the courts, Dr Mahathir was reported in the 24 November 1986 issue of Time magazine, as saying:

�The Judiciary says, �Although you passed a law with certain things in mind, we think that your mind is wrong , and we want to give our intepretation.� If we disagree, the courts say, �We will intepret your disagreement.� If we go along, we are going to lose our power of legislation. We know exactly what we want to do, but once we do it, it is intepreted in a different way, and we have no means to intepret it our way. If we find that a court always throws us out on its own intepretation, if it inteprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish.�

This passage sparked off a contempt of court action instituted by Lim Kit Siang against the Prime Minister. The High Court and thereafter the Supreme Court dismissed this action.

This was followed by the UEM case decision at the Supreme Court, which was a victory for the government, but only by a majority decision with two judges dissenting.

The removal of judges in 1988 clearly showed that it was not just a possibility or a threat but could become a reality if you didn�t behave as you should. The upheaval in 1988 has left a deep-seated fear in many of our judges.

During this time, we also had the UMNO crisis arising from the contest for the UMNO presidency in 1987. Mahathir, who was challenged by Tengku Razaleigh Hamzah, won by a very slim majority of 43 votes. Eleven UMNO members then challenged the validity of this election, which resulted in the High Court declaring UMNO an unlawful society. The plaintiffs appealed to the Supreme Court, and the appeal was fixed to be heard on 13 June 1988 by a full bench of nine Supreme Court Judges. What was at stake was the political survival of UMNO, the dominant party of the Barisan Nasional, and, of course, Dr Mahathir himself.

The 1988 judicial crisis

It was also around this time that not being able to endure �the various comments and accusations made by the Honourable Prime Minister against the Judiciary not only outside but within Parliament�, the then Lord President Tun Salleh Abas, following a meeting with about 20 judges, including Tun Hamid Omar, sent a letter to the King and the State Rulers on 26 March 1988. Following this letter, Mahathir reacted and this led to the removal of Salleh Abas as Lord President on 8 August 1988 by the King based on the recomendation of the Tribunal chaired by then Chief Justice Hamid Omar.

It is instructive to note that the UMNO appeal was also heard on the same day and dismissed the following day.

Subsequently, based on the recomendations of a Second Tribunal, chaired by Edgar Joseph Jr, which was set up to look into the conduct of five suspended Supreme Court Judges, the King on 4 October 19888 ordered the dismissal of Supreme Court Judges Tan Sri Wan Suleiman and Datuk George Seah.

1988: Shrinking judicial power

In the criminal case of PP -v- Dato Yap Peng, the Supreme Court came to the decision that section 418A was unconstitutional on the ground that it violated Article 121(1) of the Constitution, which then provided that the judicial power of the Federation was vested in the two High Courts and such inferior courts as might be provided by federal law.

The Supreme Court in that case had this to say:- �...judicial power to transfer cases from a subordinate court of competent jurisdiction as presently provided by s. 418A cannot be conferred on any organ of government other than the judiciary...� Judicial power broadly defined means �the power every sovereign authority must of necessity have to decide controversies between the subjects, between itself and its subjects whether the right relates to life, liberty or property�, and this power rightly should and must be vested in the third arm of the government, the judiciary.

But alas, the Barisan National, which had more than a two-thirds majority in Parliament and in the Senate was very easily able to amend Article 121 of the Federal Constitution, removing the judicial power vested in the courts. Thereafter, the High Courts have such jurisdiction and powers as may be conferred by or under federal law. This means that the court�s jurisdiction can now be determined no longer by the courts themselves, but by the legislature. The amendment has the effect of allowing Parliament to enact legislation limiting or prohibiting judicial review. Over the past 22 years, there have been many such amendments to laws that prevent the court from reviewing Ministers' and/or government decisions.

From Hamid Omar to Eusoff Chin

Hamid Omar, who chaired the first tribunal that recomended the removal of Salleh Abas as Lord President, became Lord President on 10 November 1988. It is interesting to note that Hamid was presently at the meeting of judges that decided to send the letter to the King and State Rulers.

This was followed by Eusoff Chin, who sat in the second tribunal, being appointed as the head of the Malaysian judiciary.

During this period, there were many controversies which included the infamous Ayer Molek case; the �poison pen letter� in early 1996 which contained 112 allegations comprising 39 charges of corruption, 21 of abuse of power and 52 of misconduct, immoral and other indiscretions; the Chief Justice holidaying with a lawyer; the disclosure by a High Court Judge that he had received direction (or was that advice?) about a case before him by the then Chief Justice; and the greatly discussed cases of Lim Guan Eng and Anwar Ibrahim. A perusal of past issues of Aliran Monthly would enlighten the reader about these issues.

After the 1988 crisis, after the Mahathir-led assault on the Judiciary, the Judiciary rather than attempting to regain its loss in stature and independence wrongly focused its attacks on the Malaysian Bar and lawyers. The Malaysian Bar, which had been steadfast in their struggle to restore public confidence and the independence of the Malaysian judiciary throughout the crisis and after, became the focus of attack during this period. First, there was Manjeet Singh Dillon, the then Bar Council Secretary, who was cited for contempt for an affidavit he affirmed on behalf of the Bar Council. Subsequently, many lawyers were threatened with contempt and/or cited for contempt in the courts.

Dzaiddin - Initial Hopes Fade

Tun Mohamed Dzaiddin was then appointed the head of the Malaysian Judiciary and there was hope that under his leadership, the Malaysian Judiciary would travel the road to regain the quality and stature it once had in the period before 1988. But those hopes were shattered bit by bit. One of the Practice Directions issued towards the end of his term had the effect of further eroding the right of access to a lawyer.

Almost immediately after retirement, he joined a law firm. This sparked public discussion and debate as to whether it was proper, and its impact on the public perception of the Judiciary. The Malaysian Bar felt that there should be a �cooling off period� at the very least, whilst some even felt that retired senior members of the Judiciary (especially heads of the Judiciary) should not take up positions in law firms or other companies.

The government�s response was to look into amending the Judges Code of Ethics 1994 to include, possibly, the post-retirement conduct of judges. Despite the public controversy, Dzaiddin continued as consultant in that law firm.

Now we have a new Chief Justice, but it would be premature to judge him one way or the other.

Post 1998 judicial appointments

Article 125 of the Federal Constitution gives the power to the Prime Minister to initiate proceedings for the removal of judges. If the Prime Minister represents to the Yang di-Pertuan Agong that a judge ought to be removed, �then the Yang di-Pertuan Agong shall appoint a tribunal� which will make recommendation to remove or not to remove a particular judge. By the usage of the word �shall�, it seems that the Yang di-Pertuan Agong has no choice in the matter but to set up a tribunal.

Mahathir, by removing the head of the Judiciary and two Supreme Court Judges, had sent a clear message to the judiciary that could be simply stated as �if you do not do things according to my will, then you too will be moved�.

The removal of judges in 1988 clearly showed that it was not just a possibility or a threat but could become a reality if you didn�t behave as you should. The upheaval in 1988 has left a deep-seated fear in many of our judges.

Since then we see that only a few have been able to surmount that fear and have decided judiciously without fear and favour especially in cases involving the government or personalities and companies with links to the government.

Prior to the 1988 judicial crisis, the chairperson of the Malaysian Bar and other senior lawyers were consulted informally by the Lord President on the suitability of candidates before he made a recommendation for appointment as judges. After the crisis, this practice stopped.

In 1994 the Federal Constitution was amended to allow for the appointment of Judicial Commissioners (sort of �probationary judges�) who had all the powers of the judge but without the security of tenure, which is a safeguard required to protect and ensure the independence of the judiciary. These Judicial Commissioners are appointed on contract for an initial term of two years, and if found �satisfactory� the recommendation would be made by the Chief Justice (or Lord President as it was known before) to the Prime Minister.

In the July 2003 issue of the Malaysian Bar�s official newsletter, Infoline, Datuk Param Cumaraswamy, the United Nations Special Rapporteur on the Independence of Judges and Lawyers, was reported as saying that the recent �promotions of Augustine Paul, Arifin Jaka and Pajan Sungh Gill will be perceived by the public as a reward for having �delivered.�� Likewise, the appointments of Hamid Omar and later Eusoff Chin as heads of the Judiciary were also possibly perceived by the public as a reward.

An Extraordinary General Meeting of the Malaysian Bar has been called for 4 October 2003 to discuss this important aspect of judicial appointments and other related matters.

Mahathir's Impact on the Judiciary

In my opinion, Mahathir believed that the Executive must lead and all others must follow. He seems to have not grasped the importance of the doctrine of separation of powers or the need for a strong and independent judiciary.

Similarly as the head of UMNO, the dominant party in the Barisan National coalition, which had always enjoyed more than a two-third majority in Parliament and the Senate (both together with the Agong being the Legislature), Mahathir effectively also had control of the Legislature. In his time as prime minister, Dr Mahathir successfully removed or weakened all possible checks and balances including the Agong and the Judiciary.

Mahathir, as Prime Minister, as provided for in the Federal Constitution plays a very important role in the appointment of the Chief Justice (or Lord President as it was then known), and in the appointment of the other judges. In the past 22 years as Prime Minister, he has naturally had an effect on the Malaysian Judiciary in terms of the membership and composition of the judiciary. After all, all judges are appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister. Other than the appointment of the Chief Justice , the Prime Minister has a duty to consult the Chief Justice and/or the heads of the different courts depending on which court the judge is being appointed to. All the Prime Minister has to do is consult, but the Yang di-Pertuan Agong - apparently from the words used - has no choice but to act on the advice of the Prime Minister.

He chose the �suitable� ones, but then some of these judges proudly from time to time demonstrated rare courage through their decisions � alas, they may now be considered �unsuitable� in the eyes of the Prime Minister.

But then, the Judiciary is also to be blamed. Judges when they accept this office, must put aside all preferences, bias and prejudice and uphold justice without fear or favour.

They must not be pro or anti Government, only pro the Constitution and pro the law. They must not be pro the big companies or pro the small man in the street, only pro justice and pro human rights.

They must not bother about tomorrow, about possible repercussions from the powerful, about their chances of elevation to higher courts and judicial office. They must never forget the oath that they have taken which includes

�...I will faithfully discharge my judicial duties in that office, that I will bear true faith and allegiance to Malaysia [not the Prime Minister, not the Executive, not the government], and will preserve, protect and defend its Constitution....�

The Judiciary should heed the recommendation in �Justice In Jeopardy: Malaysia 2000�, the report prepared by an international mission led by the International Bar Association.

�We recommend that the judiciary does all in its power, in the wider interest of justice, to counter the harshness of repressive legislation and overbearing action on the part of the executive. That is the role of the judiciary when faced with repression no matter where it comes from...In the present situation and in light of the experiences of 1988, this will require great courage. Even still, we consider it essential if the reputation of the judicial system in Malaysia is to be restored to what it was and what it should be.�

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